A graduate of the University of Edinburgh, Professor Cairns served as a Lecturer in Jurisprudence at the Queen's University of Belfast before returning to Edinburgh to hold the posts of lecturer, senior lecturer and reader before appointment to the Chair of Legal History in 2000. In December 2012 he was appointed to the Chair of Civil Law. He has also worked as a Visiting Professor at the University of Miami (1988, 1991, 1995) and Southern Methodist University (1986). He held the office of Associate Dean (Postgraduate)/Director of the Graduate School in Law from 2000-2003. From 1996-2003 Professor Cairns was Book Review Editor of the Edinburgh Law Review. He has served on the Editorial Board of the Law and History Review and the Editorial Committee of the Journal of Legal History, now serving on the honorary Editorial Board of the latter. He is Chairman of the Council of the Stair Society. From 2006 to 2008 Professor Cairns served as president of the Eighteenth-Century Scottish Studies Society for a two-year term; he continues on its Board. In 2008, he became a founding member of the Advisory Board of the Alan Watson Foundation.
After early research on the comparative legal history of Louisiana and Quebec under the supervision of Alan Watson, Professor Cairns has devoted himself to the study of the legal literature of Scotland and England in the seventeenth and eighteenth centuries, and to a long term research project on the relationship between legal thought and legal education in the Scottish enlightenment. He has published extensively in those fields in Britain, North America, continental Europe and Japan. He is currently researching law and slavery in eighteenth-century Scotland and completing a monograph on the history of Scots law.
He welcomes inquiries about postgraduate research in Scottish legal history, European legal history, eighteenth-century legal studies, and slavery and law. He is currently supervising in Edinburgh:
Ph.D. "Cities of Light: Civil Law and Civic Life in Edinbugrh and Leipzig, 1707-1806"
Ph.D. "Reception of the French Civil Code in Quebec, Louisiana and Francophone Swiss Cantons: a Socio-legal Study"
Ph.D. “Legal reasoning and witchcraft and at the Justiciary Court of Edinburgh, 1628-1634”
Ph.D. “The ‘ius commune’ in Early Modern European legal thought (1453 – 1683” (second supervisor)
Recently completed and successfully examined research student work under his supervision:
LLM (by research) "Jacobitism and the Faculty of Advocates, 1700-1715" (degree awarded with distinction);
Doctorate, University of Amsterdam, "Ulrik Huber's Dialogus de docendi et discendi iuris" (co-promotor)
LL.M. (Research) "Civil Jurisdiction in Equity in the Scottish Legal System"
Ph.D., "The Court of the Commissaries of Edinburgh: Consistorial Law and Litigation, 1559-1576" (Divinity - Second Supervisor)
LL.M. (Research) "A Lawyer and his Clients: David Erskine and the Stirlings of Keir" (degree awarded with distinction)
Ph.D. "Viscount Stair's Sources and Citations in a Humanist and Natural Law Context"
Ph.D. "The Library of Charles Erskine (1680-1763): Book Collecting and Lawyers in Scotland, 1700-1760"
Law and the Enlightenment
(LLM) (Course Organiser)
The Canon Law of Marriage in Scotland, 1500-2006
This book is concerned with the transformation of Roman legal rules into the 'common law' of Western Europe in the period 1100-1400. In the space of three centuries these rules, collected in the sixth-century compilation produced by order of the Emperor Justinian, were comprehensively analysed and transformed by successive generations of medieval Italian and French jurists into the bedrock of Western European law. Through a series of chapters a number of distinguished scholars survey the traditional classifications of private law to establish the cognitive techniques used by these jurists to transform Roman law, along with Canon law into the ius commune of Western Europe.
This edited collection contributes to the lively debate about law and society in the Roman world. It attempts to provide a balanced assessment of various points of view, through a number of studies by distinguished scholars.
This study examines the criminal and civil jury in England in the 19th century. It also provides a reassessment of standard issues such as jury lenity or equity, while raising questions about orthodoxies concerning the relationship of the jury to the development of laws of evidence. Moreover, this reassessment of the jury in 19th-century England rejects the thesis that juries were squeezed out by judges in favour of market principles. The text provides a rounded picture of the jury as an institution, considering it in comparison to other modes of fact-finding, its development in both civil and criminal cases, and the significance, both practical and ideological, of its transplantation to North America and Scotland, while opening up new areas of investigation and research.
The revival of the study of Roman law in Britain in the second half of the nineteenth century was a complex development not yet fully understood. It is evident that awareness of German scholarship in Roman law, both systematic and historical, and the development of curricula in the Universities were crucial in this revival, which also influenced the writing of treatises on the common law.
This article focuses on the publication of Erwin Grueber’s textbook on the Lex Aquilia intended for use by students in Oxford. It places it in context, and explores the reaction to it of James Muirhead, Professor of Civil Law in Edinburgh, and Grueber’s Oxford colleague, Frederick Pollock. Pollock admired Muirhead as a scholar of Roman law, and corresponded with him about Grueber’s book, which he also asked Muirhead to review for the Law Quarterly Review. This was one year before Pollock published his work on torts in which he cited Grueber. Muirhead’s response to Pollock throws light on contemporary scholarship.
The article finally raises questions about our understanding of the development of the study of Roman law in late-Victorian Britain.
The Scottish evidence examined demonstrates the power of the popular understanding that in Somerset's Case (1772), Lord Mansfield had freed the slaves, and shows how the rapid spread of this view through newspapers, magazines, and more personal communications, encouraged those held as slaves in Scotland to believe that Lord Mansfield had freed them - at least if they reached England
This article explores the different ways of writing legal history, using concrete examples to demonstrate the advantages and disadvantages of each. The possibilities of national, European and transnational legal histories are discussed with a conclusion that most good legal history has always had a comparative or transnational aspect.
John W. Cairns 'Alexander Cunningham, Book Dealer: Scholarship, Patronage, and Politics' (2010) Journal of the Edinburgh Bibliographical Society vol. 5, pp. 11-35
Alexander Cunningham, Scottish Gentleman, Scholar, and Bibliophile, who lived at The Hague between 1703 and 1730, was associted with many noble collectors and had an impact on the development of many major libraries in Britain
This provides a detailed study of the de la Vergne volume and related MSS. It shows how Louis Moreau Lislet, one of the redactors of the Louisiana Digest of 1808, drew up these notes between ca 1812 and 1814 drawing on the Teatro of Perez. It arues taht Moreau's aims were parctical and that the notes are not to "sources" of the Digest in the way that Pascal and others have argued.
This explores the foundation of the first permanent chair of law in Edinburgh, relating it to the politics and intellectual concerns of the Union. Older research is considered and corrected and a new view given of this event. Particular attention is devoted to the link between the chair and article 18 of the union and the developing discipline of ius publicum universale ina European context.
This paper explores the changing attitudes of Scots lawyers to the formal sources of their law, tracking and explaining a move from the usus modernus pandectarum towards reliance on case-law. In this the differing attitudes to statutes plays a major role, especially when influenced by the Enlightenment
John W. Cairns 'The First Edinburgh Chair in Law - Grotius and the Scottish Enlightenment' (2005) Fundamina 32-58
This explores the foundation of the chair of public law and the law of nature and nations in Edinburgh in 1707 in the context of rleiance on the work of Grotius in Scottish courts in developing a substantive natural law. It then discusses the holders of the chair through the eighteenth century and the substance of what they taught
John W. Cairns 'Ius civile in Scotland ca 1600' (2004) Roman Law Tradition 136-170, vol. 2
The ius naturale and ius gentium as propounded by Grotius in his De jure belli ac pacis allowed the formulation of a modern justification of slavery as a time when European maritime powers were starting to engage heavily in the slave trade. In litigationn Scotland in the eighteenth century, Grotius was drawn on to defend slavery.
John W. Cairns 'The Face that Did not Fit - Race, Appearance, and Exclusion from the Bar in Eighteenth-Century Scotland' (2003) Fundamina 11-43, vol. 9
In the early 1780s, the Faculty of Advocates in Edinburgh tried to exclude from membership a man called John Wright. This was partly because of his background. Another reason may have been his remarkable appearance which may have raised questions in individuals' minds about his racial origin and promoted anxieties deriving form the developing science of physiognomy
John W. Cairns 'Legal Study in Utrecht in the Late 1740s The Education of Sir David Dalrymple, Lord Hailes' (2002) Fundamina pp. 30-74
This article, in a special issue of Fundamina, entitled Summa Eloquentia, dedicated to Margaret Hewett, examines the MSS and Library of Lord Hailes to explore his legal education at Utrecht. It raises issues about the links between the study of law and classics and the reasons why Scots stopped going to study law in the Netherlands. It makes some points about the Enlightenment as a concept and legal humanism, while discussing the teaching of various law professors at Utrecht in the 1740s, notably Wieling, Houck and Wesseling.
John W. Cairns 'Alexander Cunningham's Proposed Edition of the Digest An Episode in the History of the Dutch Elegant School' (2001) Tijdschrift voor Rechtsgeschiedenis vol. 69, pp. 81-117, pp. 307-359
This explores the life and times of Alexander Cunningham (died 1730) assessing his significance as an editor of the texts of the Corpus Iuriis Civilis, particulalrly of the Digest and as an editor of classical texts. It assesses his significance as a book collector and dealer and his importance in the intellectual life of Scotland and the Netherlands
John W. Cairns 'Alfenus Varus and the Faculty of Advocates: Roman Visions and the manners that were Fit for Admission to the Bar in the Eighteenth Century' (2001) Ius Commune: Zeitschrift für Europäische Rechtsgeschichte Vol.28, pp. 203-232
Members of the Faculty of Advocates, the Scots bar, had traditionally been trained in Roman law, on which they were typically examined for admission as advocates before the supreme civil court, the Court of Session. In the later seventeenth century, the social composition of the Faculty changed, as it became dominated by the sons of landed families. It became a more socially exclusive institution. This social exclusiveness was reinforced by studies in Roman law, which were expensive, as they had to be pursued abroad. Roman law and its interpreters also provided legal arguments that to be an advocate was to exercise a noble profession and the model of the ideal advocate was a combination of the Roman jurist with the Roman orator. In the later eighteenth century, however, after the development of law schools in Scotland, acquisition of knowledge in Roman law became less expensive. When two men of “low” social origins (both with alleged connections with shoe-making) attempted to join the Faculty, a crisis resulted, in which the Faculty tried to develop new exclusionary rules using the eighteenth-century languages of virtue, corruption, sentiment and manners, as the ignobility of having exercised a trade such as shoemaking was judged to indicate a person unsuited to practise as an advocate. Contradictions in attitudes to Roman law were, however, revealed in lectures dealing with the fact that the famous Roman jurist Alfenus Varus had allegedly been a shoemaker. Attempts were made to rescue Alfenus showing either that Roman shoemakers were “genteel”; or that Alfenus was in fact more noble. These episodes revealed that the Faculty’s traditional Roman model no longer functioned adequately to support the Faculty’s claim to status. The crises over admission did help move towards the later view of an advocate not as a possessor of a status, but as a professional man defined by technical skills and legal knowledge.
John W. Cairns 'Ethics and the Science of Legislation, Legislators, Philosophers, and Courts in Eighteenth-Century Scotland' (2000) Jahrbuch fur Recht und Ethik vol. 8, pp. 159-180
The final ceremony for admission as advocate in scotland before the College of Justice formerly was the delivery of a speech in Latin on a text of the Corpus iuris civilis. The intrant advocate wore a hat for this ceremony. This article discusses the procedures for admisison as an advocate to argue that the ritual wearing of a hat had a symbolic meaning central to the aspirations of the Faculty of Advocates. Evenutually misunderstood, the ceremony was discontinued in the early nineteenth century
John W. Cairns 'Academic Feud, Blood Feud and William Welwood: Legal Education in St Andrews, 1560-1611' (1998) Edinburgh Law Review Vol. 2 Parts 1 and 2 pp.158-179, 225-287
This explores the life of William Welwood professor of Law in St Andrews University until 1611. It examines his teaching and its European and Scottish context, while also considering the nature of university history and the impact of the life of individuals on institutions. It examines the bloodfeud that marked and hampered Welwood's career.
John W. Cairns 'Three Unnoticed Editions of Pieter Burman's Antiquitatum Romanarum brevis descriptio' (1997) The Bibliotheck Vol. 22 pp.20-33
This article corrects earlier views about the teaching of history by Charles Mackie in Scotland, showing how he taught a class on Antiquitates using the textbook of Pieter Burman, which as a result wnt through three Scottish editions, without the name of the author disclosed.
John W. Cairns 'Andrew Bell, Jonas Luntley and the London Edition of Mackenzie's Institutions' (1996) The Bibliotheck Vol. 21, pp.7-11
This paper explores issues around defining slavery, showing the problems in eighteenth century Scotland through a detailed examination of arguments in certain crucial cases and how the arguments were developed in ways mirrored in some contemporary debates. Roman law provided a touchstone for 'true slavery'.
This paper explores the writing and development of chapter 5 of Millar's Origin of the Distinction of Ranks, dealing with servants, showing how he devloped the text in relationship to his lectures, and the anxieties he displayed in his correspondence with his publisher
John W. Cairns 'English looters and Scottish lawyers: the ius commune and the College of Justice' in Harry Dondorp, Jan Hallebeek, Tammo Wallinga, Laurens Winkel (eds) Ius Romanum - Ius Commune - Ius Hodiernum: Studies in Honour of Eltjo Schrage on the occasion of his 65th birthday (Scientia Verlag, Amsterdam & Aalen, 2010) pp 49-59
In contrast to Denmark, Scotland was the junior partner in the British state. Yet politics and circumstances allowed preservation of a legal system, different from England because of the role of Roman law, in conrtrast to Denmark which emphasised a uniquely Danish law. Thoroughteh eighteenht century, Scotland mainatined a significant measure of independence within Britain.
This provides a newly researched, fresh account of the development of comparative law as a scholarly and practical discipline in Great Britain from around 1860 to the present day, stressing the significance o its development of the Empire and its decline
This chapter focuses on slavery, which was a recognized part of Roman society, and discusses the problems which it caused in the very different social conditions of 18th-century Scotland. The pursuer in a divorce action wished to call a slave from the Caribbean to give evidence of his wife's adultery. The ensuing legal debate about the competence of a slave to give evidence is analysed and it is shown how the very fact that Scots law did not recognize or regulate slavery led to uncertainty and potential confusion.
This chapter examines the structure of medieval Scottish courts and considers the symbolism of that structure, particularly the symbolism of fencing, before examining how these structures and symbols changed under the impact of the European ius commune, examining in particular the rituals and symbols surrounding admission as a lawyer before the court.
A reassessment of the Foundation of the College of Justice that contests the established view about the history of the foundation by a close reading of the documents of foundation suggesting the plan to found the College originated in Scotland, probbaly thought out by the Chancellor, Gavin Dunbar, and was a deliberate attempt to creat a modern court.
There are three significant features of legal theory in the Scottish Enlightenment: the engagement of the legal profession; the concern with history; and the support for law-making through the decisions of the courts. The chapter discusses: natural law, legal education, and Scots law; the form of process and natural law; and natural law, moral sense, history and law.
This paper considers the ideological and practical significance of the introduction of the civil jury to Scotland in the early nineteenth century, placing it in the context of the development of Scots law and procedure in the Court of Session and the ius commune and assessing the significance for it of the development of moral theory in eighteenth-century Scotland.
This explores the implications of the develpment of the text of MacKenzie's Institutions of the Law of Scotland both between and within editions. It raises queries about the viability of the Scottish idea of an institutional writing as a formal source of law
John W. Cairns 'John Millar, Ivan Andreyevich Tret'yakov, and Semyon Efimovich Desnitsky: A Legal Education In Scotland, 1761-1767' in Tatiana Artemieva, Peter Jones, Michael Mikeshin (eds) Russia and Scotland in the Enlightenment (St Petersburg Centre for the History of Ideas, 2001) pp. 20-37
This discusses the experiences of two russians who studied law with John Millar in Glasgow in the early 1760s, explores Millar's early development of the curriculum in Law at Glasgow and points out some promising areas for research, where the Russians' experience of this education in Glasgow influenced their work in Russia.
This chapter attempts to trace the changing nature of Scots law, focusing on its main institutions and taking into account the history of politics, social and economic life, and philosophy. The story is told from the emergence of the Scottish kingdom in 1832. By this date, the basic architecture and much of the sculptural detail of Scots law was in place. An epilogue to this chapter reviews some subsequent developments. The picture that emerges is not one of ‘false starts’. Nor is it one of simple continuity. In fact, the historical reality is too complex to reduce to simple descriptions or metaphors.
John W. Cairns 'James Muirhead, Teacher, Scholar, Book Collector' in John W. Cairns, Christian Verbeke (eds) The Muirhead Collection Catalogue (Belgische Commissie voor Bibliographie en Bibliologie, 1999) pp. 1-32
This is an account of the life and work of James Muirhead, Professor of Civil Law in the University of Edinburgh. Educated in Edinburgh and Heidelberg, Muirhead did much to introduce the new German scholarship in Roman law into the United Kingdom. Active in Edinburgh University affrom 1862, he was an important book collector and produced some intersting works of scholarship. From being influnced by the German Pandektenrecht, he moved to a more hsitroical approach to Roman law, as is evidenced in his history of Roman law and edition of Gaius.
John W. Cairns 'A History of the Faculty of Advocates to 1900' in (eds) Stair Memorial Encyclopaedia (Butterworths and the Law Society of Scotland, 1996) (1992) vol. 13, pp. 499-536
John W. Cairns 'Importing our Lawyers from Holland: Netherlands’ Influences on Scots Law and Lawyers in the Eighteenth Century' in (eds) Scotland and the Low Countries, 1124-1994: Mackie Monograph 3 (Tuckwell Press, 1996) 136-153
John W. Cairns ''As Famous a School for Law as Edinburgh for Medicine’: The Glasgow Law School, 1761-1801' in Hook, Andrew and Sher, R. B. (eds) The Glasgow Enlightenment (Tuckwell Press, 1995) pp. 133-159
John W. Cairns 'Adam Smith’s Lectures on Jurisprudence: Their Influence on Legal Education' in Mizuta, Hiroshi and Sugiyama, Chuhei (eds) Adam Smith: International Perspectives (St Martin's Press, 1993) pp. 63-83
John W. Cairns 'The Formation of the Scottish Legal Mind in the Eighteenth Century: Themes of Humanism and Enlightenment in the Admission of Advocates' in Neil MacCormick, Peter Birks (eds) The Legal Mind: Essays for Tony Honore (Oxford University Press, 1986) pp. 253-277
Papers and Presentations
John W. Cairns 'Newspapers, Slaves, and Identities in Eighteenth-Century Scotland' presented at Media & Mediation in Eighteenth-Century Scotland: Voices, Manuscripts and “Guid Black Prent", Eighteenth-Century Scottish Studies Society, 12-15 April, Columbia, South Carolina, 2012
Through study of the advertisements for sales of slaves and runaway slaves in eighteenth-century Scotland, we can start to understand how Scots understood and perceived the men and women of African and Indian descent held as slaves in Scotland.
These advertisements were in some cases rather formulaic, and undoubtedly reflect colonial advertising practice. Also, they do not necessarily produce an accurate sample of the black or Indian experience of enslavement in Scotland. Nonetheless, they offer enough that is novel to help us move towards an understanding of the unique reality of black and Indian slavery in eighteenth-century Scotland, and to grasp the circumstances of their lives.
Through their study we can also see how the wider Scots community understood these individuals in their midst, an understanding that reflects back to illuminate the eighteenth-century slave-owning Scots themselves.
Karen Baston, John W. Cairns 'Natural Law in Scotland' presented at Natural Law 1625-1850, Copenhagen 4-5 October, 2012
This paper raised some issues about how the collection of material relating to natural law in Scotland is to be understood, talked of how a way forward might be found, and explored some current possibilities reflecting the progress already made in collecting material
John W. Cairns 'Natural Law and Education in Roman Law in Eighteenth-Century Scotland' presented at From Natural Law to Human Rights: a conference in honour of Knud Haakonssen,, HiltonHotel, Brighton, 11-13 October, 2012
This paper examined the role of Natural law in Legal Education in 18th-century Scotland, considering textbooks and lectures
John W. Cairns 'Slaves and Slaveowners in Eighteenth-Century Scotland' presented at Centre for Scottish and Celtic Studies Research Seminar with the Andrew Hook Centre for American Studies, University of Glasgow, 20 November, 2012
This paper explored who were held as enslaved in eighteenth-century Scotland ad who held them. As well as exploring the how, why and where, the paper attempted to explore the emotional and psychological aspects.
John W. Cairns 'Blackstone in the Bayous' presented at Re-Interpreting Blackstone's Commentaries: The Evolution and Influence of a Seminal Text in National and International Context, Adelaide, 6 December, 2012
This paper examined the drafting of the Digest of the Civil Laws of the Territory of Orleans, noting the influence of Blackstone both on individual articles and on the structure of the first book.
John W. Cairns 'Colonial Practices: Mediating Slavery in Eighteenth-Century Scotland' presented at Australia abd new Zealand Legal History Society Annual Conference: Receiving Laws/Giving Laws, Sydney, NSW, 10-12 December, 2012
This paper examined how Scots law managed the presence in Scotland of enslaved men and women of African and Indian origin. It did so through adopting assumptions about the position of African and Indian people acquired through enthusiastic Scottish participation in the first British Empire. Scots law did not explicitly endorse slavery, though it probably came closer to doing so than English law; but it obtained enough ambiguity that allowed colonial legal practices to translocate to Scotland, and thereby create a working regime supportive of holding Africans and Indians as enslaved, with mechanisms for sale, transmission by inheritance, and emancipation. Colonial assumptions became embedded in Scottish legal practice, through a set of social and racial assumptions endorsed in particular by a legal profession greatly implicate in in slave-owning on Scotland and particularly in the Caribbean. This translocation of colonial practices allowed Scots law, drawing on an ambiguous doctrinal background, to mediate between the tensions created by the presence of enslaved individuals in a country and jurisdiction that did not explicitly endorse slavery and in which the inhabitants considered themselves as a free people. The tensions were finally resolved by Scotland's "free soil" case, Knight v. Wedderburn (1778), which used anthropological and historical evidence to challenge a natural-law based argument in favour of slavery, and which led to a general forgetting of the support slavery once received.
John W. Cairns 'Planning and Printing a Code/Digest' presented at Louisiana: The Legal History of Europe in a Single US State, Edinburgh, 2011
This paper discussed the use of Roman law in the Scottish Enlightenment to understand the position of men and women of African and Indian descent held as slaves in Scotland
John W. Cairns 'National, Transnational, and European Legal Histories: Paradigms and Problems' presented at Writing Legal History: Breaking out of National Frameworks, Maison Francaise d'Oxford, 7 May, 2010
This paper explored the advantages and problems of writing legal history, considering national, European and transnational approaches, drawing on evidence form tthe leagl histories of Scotland and Louisiana
John W. Cairns 'The Impact of Somerset's Case in Scotland' presented at Thomas Reid, William Cullen and Adam Smith: The Science of Mind and Body in the Scottish Enlightenment - ECSSS, Princeton Theological Seminary, 24-27 June 2010, 2010
This paper explored the significance of the de la Vergne volume and related manuscripts and their link with the Digest of Orleans of 1808. It considered thepurpose and function of the manuscript in historical context.
John W. Cairns 'Slaves and Slave-Owners in Eighteenth-Century Scotland' presented at "You have nothing to lose but your chains", History Research Seminar University of Dundee, 7 March, Dundee, 2007
This paper examined the lives off black and Indian men and women held as slaves in Eighteenth-century Scotland. It considered the relationships between slaves and masters/mistresses. It further raised issues about how this reflected on the movement to abolish the slave-trade.
John W. Cairns 'Slaves and Slave-Owners in Eighteenth-Century Scotland' presented at Scotland, Slavery and Abolition, Edinburgh, 2007
This paper examined the origins of individuals held as enslaved in eighteenth-century Scotland, considering who claimed to own them, the work they did, and the issues of gender and age before assessing the nature of relations between master and enslaved servant.
John W. Cairns 'Alexander Cunningham, Book Dealer' presented at To Collect the Minds of the Law: Rare Law Books, Law Book Collections and Libraries: An International Symposium, Malmö, Sweden, 2007
This paper examined the role of black slave sin Scotlandin an Atlantic context, focusing on a detailed study of slave apprentices in Scotland
John W. Cairns 'Enforced Sojourners under Grey Skies: Black Apprentices in Eighteenth-Century Scotland' presented at Pan-Atlantic Scottishness - 20th Anniversary Conference: Eighteenth-Century Scottish Studies Society., Williamsburg, Virginia, 2006
Alan Karras’ excellent work, Sojourners in the Sun, examined Scottish migrants in the Jamaica and the Chesapeake, 1740-1800, who generally went to the transatlantic colonies to make money to enhance or maintain their status in Scotland, to which they intended to return. This paper will examine an opposite flow of people: black slaves sent to Scotland from the West Indies and the North American Colonies to be taught a trade. While it is known of black men and women who came to Scotland as personal servants with their masters from the colonies (most famously, Joseph Knight), this paper will examine a small number of individuals sent from the colonies to be trained in Scotland in a useful trade that would enhance their value in the colonies. A number of such individuals can be found apprenticed in Scotland. This paper, deriving from my continuing research project on black men and women held as slaves in eighteenth-century Scotland, will consider their lives and experiences and the reasons that led their masters to send them to Scotland.
John W. Cairns 'The Union of 1707 and legal education: The Foundation of the Edinburgh Chair of Public Law' presented at The Union of 1707: Causes, Contexts and Consequences, University of Glasgow, 20 October, Law and Scottish Studies, 2006
In 1707, the first Chair in Law in the University of Edinburgh was founded. The context was the Union negotiations. The paper explores this, demonstrating who founded the chair, why it was founded, and why the first professor was appointed.
John W. Cairns 'The Origins of the Edinburgh Law School' presented at American Society for Legal History, Baltimore, November 16-18, 2006
This explored the foundation of the first chair of law in Edinburgh and the appointment to it of Charles Erskine (or Areskine). It challenged received views of the foundation and placed it in intellectual and political context.
John W. Cairns 'Discussant, Panel on Roman Law' presented at American Society for Legal History, Cincinnati, 2005
This was an assessment of papers on Roman Litigation, Roman lease transactions in granaries, and the Influence of Quinitillian in 19th-century America. It emphasised the significance of the Sulpician archive and the importance of imaginative but sensitive use of sources.
John W. Cairns 'From Claves Curiae to Senators of the College of Justice - Changing Rituals and Symbols in Scottish courts' presented at Symbolische Kommunikation vor Gericht (15.-18.Jh), 2005
While once Scottish Court involved fencing and calling of suits, in the sixteenth century other rituals, deriving form the Ius Commune came to predominate symboliisnga profound shift in the nature of Scots law
John W. Cairns 'Natural law, Parliaments, and Multiple Monarchy: 1707 and Beyond' presented at Danish Identities: British, French and Domestic Perceptions during the Eighteenth Century. A Symposium at the Royal Danish Academy of Sciences and Letters, Copenhagen, 2005
Denmark was a conglomerate state, while the Briitish Isles had a multiple monarchy. How did this cash out in terms of law - why did Scotland preserve its own law, how did differing theories of natural law affect this?
John W. Cairns 'Slavery, Roman Law, and the Scottish Law of Evidence' presented at Society of Legal Scholars Annual Conference, 2005, University of Strathclyde, Glasgow, 2005
This examined the presence of black slaves in eighteenth-century Scotland and how the legal regime dealt with them, until a series of test cases leading to Knight v. Wedderburn.
John W. Cairns '"I am too much in Scotland here" - Scottish Archives and the History of Law-Teaching in the Northern Netherlands, 1675-1765' presented at Workshop: Scottish Sources in the Netherlands, Dutch Sources in Scotland, AHRB Centre for Irish and Scottish Studies, University of Aberdeen, 2004
Scottish archives contain much informationon legal eductaion in the Netherlands, in letters, books, and student notes.
John W. Cairns 'The Evidence of Black Slaves in Scotland During the Eighteenth Century, A Problem of Roman Law' presented at Formes de Dépendance: Asservissement et Esclavage dan le Monde Antique, São Paulo – Rio de Janeiro, Brasil, 2004
Until 1778 and the decision in favour of freedom in Scotland by the Court of Session in the case of Knight v. Wedderburn, a number of black men and women can be traced as held as slaves in eighteenth-century Scotland. The lower courts had hitherto accepted this position and litigation before the Court of Session itself had also at one stage threatened to accept their status as slaves.
The problem was that, if, as was argued, slavery was compatible with the law of Scotland and endorsed by the ius gentium and (some at least argued) by the ius naturae, and hence potentially recognisable in Scotland, the law made no provision for the further regulation of the details of slavery. This created problems about, for example, manumission of a slave. How did a freed slave show he was free? Masters developed a variety of ruses to generate a document that showed that the black individual who held it was free.
Another problem that arose related to evidence or testimony in court. Here were two problems. First, not all slaves were baptised as Christians, and hence could not take the oath necessary to give testimony. Secondly, while the state of dependence of the slave made him or her potentially not a “habile” witness, more significantly, did their status as unfree prevent such an individual from being a witness at all?
These issues arose in litigation in the early 1770s in divorce litigation before the Commissary Court in Edinburgh, where a party to an action for divorce called an alleged slave as a witness. The lack of regulation of slavery meant that the court was in a quandary as to what to do.
The paper will explore this issue and how the reference to Roman law, still considered as a potential source, was not found helpful, given that the Roman legal texts required that slaves generally give evidence under torture. It will thus demonstrate the problems that arose from the acceptance at some level of slavery, but without any supporting legal institutions.
John W. Cairns 'Leiden and Scots Lawyers' presented at Scotland in the Netherlands 2004: Scottish/Dutch Legal Conference, Leiden University, Faculty of Law, 2004
This paper discussed the value placed on Roman law as a mark of the distinctive nature of Scots law in the early nineteenth century. It focused on Henry Brougham's criticism of the knowledge of Roman law among the Scots, explaining why his remarks caused such anger and were seen as threatening the integrity of Scots law. Defences inlcuded discussion of Scottihs knowledge of the nascent German Historical School.
John W. Cairns 'The face that did not fit, race, appearance and exclusion from the bar in eighteenth-century Scotland' presented at Freedom, Justice and Equality: Three Pillars of Legal History. International Conference, Southern African Society of Legal Historians, 2003
In the early 1780s, the Faculty of Advocates in Edinburgh tried to exclude from membership a man called John Wright. This was partly because of his background. Another reason may have been his remarkable appearance which may have raised questions in individuals' minds about his racial origin and promoted anxieties deriving form the developing science of physiognomy.
John W. Cairns 'Attitudes to Codification and the Scottish Science of Legislation' presented at Common Law und europäische Rechtsgeschichte, Hesse, Germany, 2003
This paper traced the Scottish move form an emphasis on lex as the foundation of law to a preference for judicial law-making as likely to bring about a superior quality of law. It explains how Scotland came to develop differently form other countries of the ius commune under the impact of moral theory in the eighteenth century, eventually finding certainty in law in the doctrine of precedent. In the era of codification, security for Scots law was found in the doctrines of F.C. von Savigny.
John W. Cairns '"I am too much in Scotland here", Scots Students in Leiden and Utrecht, 1680-1750"' presented at Scotland and The Netherlands: Workshops on Private Law and the Ius Commune, Old College, Edinburgh University, 2003
This paper examined the experience of Scots students in the Netherlands, explaining why they went there to study, exploring their experinces and considering why they stopped going to the Netherlands to study.
John W. Cairns 'Race, Slavery and Law in the Scottish Enlightenment' presented at Robert Gordon University Seminar, 2002
The legal system in Scotland was complicit in the holding of black individuals as slaves in Scotland in the eighteenth-century, After 1750, public opinion turned against this to some extent, leading to a litigation. This culminated in the case of Knight v. Wedderburn in 1778
John W. Cairns 'Law, race, and the Advocates of 18th Century Scotland, the Strange Career of John Wright' presented at Enlightenment, Law and Lawyers, University of Glasgow, 2002
John Wright was admitted as an advocate in 1783, after some attempts by the Faculty of Advocates to exclude him. In part this was because of his social origins, but it may also have related to Wright's appearance. The issue of his race was considered as were views arising out of the science of physiognomy. Did his face simply not fit?
John W. Cairns 'Ius Commune and Ius Proprium Legal Practice in Sixteenth Century Scotland' presented at University of Stockholm, 2002
This discussed the influence of legal philosophy and the development of the courts to explain why by the end of the eighteenth century the Scots had moved towards a case-law system
John W. Cairns 'La responsiabilidad por acto ilícito en el derecho ingles y en el derecho escocés in English as Delictual and Tortious Liability in Scots law and English law' presented at Jornadas Internacionales de Derecho Romano, Universidad de Valladolid, 2000
An account of the history of the development of tortious and delictual liability, focusing on the concept of duty of care
John W. Cairns 'John Millar, Ivan Andreyevich Tretyakov, and Semyon Efimovich Desnitsky, A Legal Education in Scotland, 1761-1767' presented at Scotland and Russia in the Enlightenment, Institute for Advanced Studies in the Humanities, Edinburgh, 2000
This discusses the experiences of two russians who studied law with John Millar in Glasgow in the early 1760s, explores Millar's early development of the curriculum in Law at Glasgow and points out some promising areas for research, where the Russians' experience of this education in Glasgow influenced their work in Russia.